A paper trail of betrayal: Google’s net neutrality collapse

A Tale of Two Googles—we compare Google's earlier filings on net neutrality …

Like the rest of the technology world, we're wondering why Google has chosen to ally itself with Verizon, issuing a set of joint net neutrality recommendations that critics charge would significantly weaken the Federal Communications Commission's ability to protect the open Internet.

The whole approach just seemed so at odds with Google's past fiery statements on the issue. Maybe we misread the search engine giant's previous statements, we worried. Until this month, wasn't Google one of net neutrality's biggest advocates?

So this morning we re-read three Google documents again—filings with the FCC going back to 2007, shortly after Google's Eric Schmidt first asked the public to "take action to protect Internet freedom."

Comparing "Google Then" with "Google Now," the differences seem pretty stark. Google Then raised strong objections to three major points in the Google/Verizon statement that Google Now endorses.

1. Rules versus principles

The core of the Google/Verizon proposal is that ISPs would adhere to a set of "principles"—a non-discrimination principle prominent among them:

In providing broadband Internet access service, a provider would be prohibited from engaging in undue discrimination against any lawful Internet content, application, or service in a manner that causes meaningful harm to competition or to users. Prioritization of Internet traffic would be presumed inconsistent with the non-discrimination standard, but the presumption could be rebutted.

But when it comes to enforcing this ban against what the Google/Verizon announcement called "bad actors," the plan recommends that the FCC do so through "case-by-case adjudication" rather than pre-existing, detailed rules.

The Commission "would have no rulemaking authority with respect to those provisions," the proposal continues. "Parties would be encouraged to use nongovernmental dispute resolution processes established by independent, widely-recognized Internet community governance initiatives, and the FCC would be directed to give appropriate deference to decisions or advisory opinions of such groups."

That's what Google Now suggests, but three years ago Google Then protested the agency's lack of solid, clear regulations against packet discrimination.

"This Commission to date has decided that no regulatory rules are necessary to address concerns about packet discrimination," Google wrote in 2007. "Instead, the agency promises to stand watch, and react only when provoked by 'bad acts.' Of course, without knowing what kinds of market behavior would trigger the FCC's involvement—or whether the FCC even possesses the requisite legal authority to remedy the situation—the rest of us are left with serious misgivings that this approach will prove effective at preserving an open and generative Internet."

Google warned that this approach had a variety of "downsides"—"broad 'principles' without consistent, enforceable rules risk a significant chilling effect on innovators who rely upon regulatory clarity to assure the existence of Internet platforms without artificial barriers," the firm's lawyers charged at the time.

They're not saying it anymore.

2. Priority access

As already noted, the Google/Verizon manifesto includes language against prioritizing online data, but with significant exceptions. "Prioritization of Internet traffic would be presumed inconsistent with the non-discrimination standard, but the presumption could be rebutted," the statement explains [our italics].

The plan also lists various reasonable network management practices that it defines as "technically sound." These include efforts to "to ensure service quality to a subscriber," and "to prioritize general classes or types of Internet traffic, based on latency; or otherwise to manage the daily operation of its network."

Lastly, the proposal recommends creating a whole category of "additional or differentiated services" that "would have to be distinguishable in scope and purpose from broadband Internet access service, but could make use of or access Internet content, applications or services and could include traffic prioritization."

It is unclear yet what the "additional services" would be, but Google Then could not have been more suspicious of these ideas. The company conceded in 2007 that two types of prioritization schemes could be justified—"differentiating based on the type of applications and/or the quantity of bandwidth purchased by the consumer."

"Simply put, QoS appears to be unnecessary," the company wrote, "the proverbial solution in search of a problem. As expert researchers and engineers have determined after years of analysis, there is no network problem allegedly solved by prioritization that cannot also be solved by additional bandwidth."

QoS, Google charged, would function as a disincentive for ISPs to further build out their networks. It wouldn't even deliver promised results, unless the big ISPs agreed to complex, standardized end-to-end prioritization agreements.

Broadband providers using the technique, the company warned, "have the incentives and the means to create a closed private network that consigns Internet content and applications to a relatively slow, bandwidth-starved portion of the broadband connection. Obviously it will be increasingly difficult for providers of Internet-based applications such as video content to compete effectively against the broadband providers in this kind of 'two-tiered' broadband network."

As for those "additional and differentiated services," as recently as April of this year, Google took exception to a similar proposal coming from the FCC (which by now had recommended rules)—to create a "managed services" category exempt from the agency's net neutrality proposals.

"If a last-mile broadband provider dedicates only a small slice of its broadband capacity to the open Internet while reserving the vast majority of the network’s capacity for proprietary 'specialized' services, the public interest would be compromised," Google told the FCC in January.

"In the interim, however, such services should not receive a 'free pass' around the Communications Act," Google wrote. "Designating any particular offering as a 'managed' or 'specialized' service cannot cause it automatically to fall outside of the Commission's oversight and authority."

That was mere months ago, yet this week, Google explicitly laid the groundwork for all of these ideas to get written into US law.

3. Wireless exemption

Finally, there can be no question as to what Google Then would have thought of Google/Verizon's proposal to exempt wireless broadband providers from any non-discrimination principles. Indeed, BusinessWeek even ran a Google-focused piece in September 2009 called "Will Net Neutrality Go Wireless?"

But according to this week's proposal:

Because of the unique technical and operational characteristics of wireless networks, and the competitive and still-developing nature of wireless broadband services, only the transparency principle would apply to wireless broadband at this time.

What's all this about the "unique" character of wireless networks? Rob Frieden, a respected Penn State telecoms scholar, noted this week that "the rationale for exempting wireless does not pass the smell test... The technical and operational aspects of wireless strongly necessitate the non-discrimination requirement."

Back in April, Google agreed. It strongly lobbied against this idea and the logic behind it. Wireless companies (like Verizon) that seek a nondiscrimination exemption based on the allegedly "competitive nature" of the wireless sector, "fail to acknowledge some relevant facts," the company wrote.

The number of mobile wireless subscribers may be increasing, but "the number of service providers actually is contracting," with AT&T and Verizon controlling over 60 percent of the national wireless market. "Further, these two providers' wireless, video, voice, and data offerings are substantially vertically integrated with—and their motivations to discriminate are tied to—their affiliates' wireline networks," Google added.

It went on:

More importantly, wireless broadband access providers do not acknowledge the wireless industry's record of dubious practices—a list that continues to grow. For example, the cable industry notes that "providers of wireless Internet access unabashedly engage in outright blocking." Deep packet inspection "has been deployed far and wide" by various wireless last mile network operators. Further, the contractual terms imposed by major wireless carriers purport to prohibit the use of peer-to-peer applications, Web broadcasts, server or host applications, tethering, and the use of wireless as a substitute for wired broadband. Nonetheless, wireless network operators' practices are not transparent, the government to date has declined to exercise its rightful oversight authority, and effective enforcement mechanisms to address abuses do not exist.

"Notwithstanding any technical differences between wireline and wireless networks that may justify different application of the reasonable network management exception on a case-by-case basis," Google Then insisted, "the record is clear that all last-mile broadband network providers have common incentives to discriminate in the absence of an effective and enforceable rule protecting consumers and competitors."

But between April and August, the wireless market apparently became "competitive." As for the wireless industry's bad acts, so long as those are disclosed, Google has made its peace with them.

That was then

We have every confidence that Google Now will insist that its present stance represents a solid extension of the company's call for an open Internet.

"It is imperative that we find ways to protect the future openness of the Internet and encourage the rapid deployment of broadband," Google and Verizon declared in their statement announcement.

But the sheer volume of earlier commentary penned by Google that runs contrary to its newest recommendations isn't going to disappear down the memory hole.

Advocates of net neutrality will look at these documents and charge betrayal. Opponents will cheer a powerful company coming to its senses. Scholars will have to decide whether this week saw one of the most remarkable volte-faces in telecommunications policy history.

Matthew Lasar / Matt writes for Ars Technica about media/technology history, intellectual property, the FCC, or the Internet in general. He teaches United States history and politics at the University of California at Santa Cruz.